SUPERIOR COURT OF WASHINGTON FOR CLARK COUNTY 9. Case No.

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1 SUPERIOR COURT OF WASHINGTON FOR CLARK COUNTY 1 1 SCHNEIDER ELECTRIC BUILDINGS AMERICAS, INC., a Delaware Corporation, v. Plaintiff, CITY OF VANCOUVER, WASHINGTON, a Washington municipal corporation, Defendant, CLARK COUNTY, WASHINGTON, a political subdivision of the State of Washington, Other Party. Case No. COMPLAINT FOR INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT Plaintiff alleges as follows: I. PARTIES 1.1. Plaintiff SCHNEIDER ELECTRIC BUILDINGS AMERICAS, INC. (Schneider Electric) is a corporation incorporated under the laws of the State of Delaware and registered as a Washington Corporation under UBI # 01. Schneider Electric entered into a contract with Clark County, Washington to develop, construct and operate the County's Central District Heating Plant to be located at 1 W. th Street, Vancouver, Washington (Property). DECLARATORY JUDGMENT /VANDOCS:0. //

2 Defendant CITY OF VANCOUVER (City) adopted a moratorium in Ordinance No. M- on October, (Moratorium) preventing Schneider Electric from filing additional land use applications for the Central District Heating Plant (Project). 1.. CLARK COUNTY, WASHINGTON is a party under RCW..0 which may have or claim any interest that would be affected by this action, as the owner of the Property and as a party to the contract with Schneider Electric. II. JURISDICTION AND VENUE.1. This court has jurisdiction over this matter and the parties hereto pursuant to RCW Venue is appropriate pursuant to RCW.1.0 because the subject of this action originated in Clark County and the defendant is located in Clark County... This declaratory judgment action is proper pursuant to RCW. et seq. III. STATEMENT OF FACTS.1. In 0, Clark County adopted a sustainability policy which says the County will encourage innovation in public and private pursuits and collaborate with private partners on projects aimed at sustainability... To that end, Clark County conducted feasibility studies of a central heating system for its downtown campus of buildings, and the studies concluded that it is financially and technically feasible to build a combined heat and power and heating and cooling system, fueled by forested biomass, using a public private partnership as the finance tool... Clark County solicited private partners, and after a competitive bidding process selected Schneider Electric to develop, construct and operate the central heating proposal to provide a clean, cost-effective way of lowering fuel costs and greenhouse gas emissions by replacing the current eleven boilers that provide the heating and cooling for the County's buildings. DECLARATORY JUDGMENT /VANDOCS:0. //

3 1 1.. On July 1,, the Clark County Board of County Commissioners approved a professional services agreement and development agreement with Schneider Electric for pre-development of the central heating system. The parties executed the agreement... The term of the County agreement is from July 1, to fulfillment of obligations (anticipated to be by January 1, 1), and requires Schneider Electric to provide three deliverables during the term of the agreement including drafting thermal purchase and lease agreements, delivering to the County the basis of design and concept overviews for the HVAC and biomass components of the system and delivering a financial pro-forma which will include refined fuel supply costs, power purchase agreement values, interconnection costs and implications, construction costs and operation costs... In order to qualify for an $,000,000 federal grant, the project must have incurred sufficient development costs qualifying, per IRS rules, as appropriate construction costs or costs incurred to satisfy "safe harbor" requirements related to the U.S. Treasury 0 Grant by December 1,, and to meet this goal the pre-development work would have needed to be completed by the end of October,... Beginning in 0, Clark County initiated discussions with the City on whether the Project would be an allowed use on the County's site located at 00/0 W. 1th and / Harney Street. This site is zoned downtown commercial... City planning staff did not believe the Project was an allowed use in the downtown commercial zone and alternatively recommended that the County find a light industrial site or seek an amendment to the City's zoning code to allow the use... The County discovered that the Property next to the initial site was zoned light industrial overlay district and that any use allowed in the light industrial district would be allowed in the light industrial overlay district... After executing the development agreement with Clark County, Schneider Electric, under its obligations in the agreement, requested that the City confirm the Project was DECLARATORY JUDGMENT /VANDOCS:0. //

4 1 1 permitted in the light industrial overlay district both informally and later by filing a Type I Planning Director Determination and Similar Use Authorization with the City... The City denied Schneider's application finding that the Project was not an allowed use. Schneider Electric appealed this decision to the City of Vancouver's hearings examiner..1. The hearings examiner held a hearing on September, and accepted argument and testimony on whether the Project was an allowed use in the light industrial overlay district... Two days before the hearings examiner's decision was due, the City Council on October, adopted Ordinance No. M- imposing the Moratorium preventing the filing of any application for the "establishment of, location of, operation of, or permitting of all light industrial uses of any kind as specified [in] VMC.0.00 within the City of Vancouver's City Center Light Industrial District established under VMC.0.00.".. The staff report and ordinance itself referred extensively to the Project, and to no other use, as being the trigger for the Moratorium... No other land use applications are pending in the light industrial overlay district... City Council members have publicly stated they do not support the Project..1. Because the Moratorium prevents Schneider Electric from filing additional land use applications, Schneider Electric's rights, status or other legal relations are affected by the Moratorium and by this action is seeking a declaration of rights, status or other legal relations thereunder pursuant to RCW..0. The Staff Report and Moratorium is attached as Exhibit A to this Complaint. DECLARATORY JUDGMENT /VANDOCS:0. //

5 1 1 IV. CLAIM FOR RELIEF (Declaratory Judgment - Due Process Violation).1. Schneider Electric realleges paragraphs 1.1 to.1 as though set forth in full in this section... The Fifth Amendment to the United States Constitution and Article I, Section of the Constitution of the State of Washington prohibit the deprivation of life, liberty or property without due process of law. The Fifth Amendment to the United States Constitution is made applicable to the actions of the State through the Fourteenth Amendment of the United States Constitution... Under Washington law, an ordinance satisfies due process only if: (1) it is aimed at achieving a legitimate public purpose, and () uses means to achieve that purpose that are reasonably necessary and not unduly oppressive on individuals... By adopting the Moratorium and preventing Schneider Electric from filing additional land use applications for the Project, the City has unconstitutionally violated Schneider Electric's due process rights by interfering with Washington's vested rights doctrine, and acted in an unreasonable, arbitrary and capricious and unlawful manner... Schneider Electric requests that the Court grant declaratory judgment against the City, declaring the Moratorium invalid and unenforceable as it applies to the Property and the rights of Schneider Electric and Clark County to file land use applications. V. PRAYER FOR RELIEF Schneider Electric has no plain, complete and adequate remedy at law and therefore requests the Court to provide such equitable relief as is in the power of the Court to provide, for the violations set forth above. WHEREFORE, Schneider Electric prays for relief as follows: DECLARATORY JUDGMENT /VANDOCS:0. //

6 1 1. That Schneider Electric be awarded a Declaratory Judgment, declaring the legal invalidity and unenforceability of the Moratorium as it applies to Schneider Electric, Clark County and the Property;. That an injunction issue ordering the City to accept land use applications related to Schneider Electric and Clark County's proposed use for the Property.. For such other and relief as the Court deems just and proper. DATED this day of. LeAnne M. Bremer WSBA #1 Stephen W. Horenstein WSBA #_ Attorneys for Plaintiff Schneider Electric Buildings Americas, Inc. 1 DECLARATORY JUDGMENT /VANDOCS:0. //